IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: MWARIJA. J.A.. MUGASHA. 3.A. MZIRAY. J.A. MKUYE. J.A. And MWAMBEGELE, J.A.^ CIVIL APPEAL NO. 138 OF 2019 APPELLANTS 1. ATTORNEY GENERAL 2. THE NATIONAL ELECTORAL COMMISSION 3. THE DIRECTOR OF ELECTIONS VERSUS BOB CHACHA WANGWE................................................... ...... RESPONDENT [Appeal from the Ruling and Drawn Order of the High Court of Tanzania (Main Registry) at Dar es Salaam] f Nawala, 3.. Matoaolo, J. and Masoud. 3.^ dated the 10th day of May, 2019 in Misc. Civil Cause No. 17 of 2018 JUDGMENT OF THE COURT 30th July & 16th October, 2019 MWARIJA, J.A.: This is an appeal from the decision of the High Court of Tanzania (Main Registry) at Dar es Salaam (Ngwala, Matogolo and Masoud, JJ.) dated 10/5/2019 in Miscellaneous Civil Cause No. 17 of 2018. In that case, the respondent, Bob Chacha Wangwe petitioned the High Court challenging the constitutionality of s. 6(1), 7(1) and (3) of the National Elections Act, [Cap. 343 R.E. 2002] (hereinafter "the NEA"). He sought
Transcript
IN THE COURT OF APPEAL OF TANZANIA
AT PAR ES SALAAM
fCORAM: MWARIJA. J.A.. MUGASHA. 3.A. MZIRAY. J.A. MKUYE. J.A.
And MWAMBEGELE, J.A.^
CIVIL APPEAL NO. 138 OF 2019
APPELLANTS
1. ATTORNEY GENERAL
2. THE NATIONAL ELECTORAL COMMISSION
3. THE DIRECTOR OF ELECTIONS
VERSUS
BOB CHACHA WANGWE................................................... ...... RESPONDENT
[Appeal from the Ruling and Drawn Order of the High Court of Tanzania(Main Registry) at Dar es Salaam]
f Nawala, 3.. Matoaolo, J. and Masoud. 3.̂
dated the 10th day of May, 2019 in
Misc. Civil Cause No. 17 of 2018
JUDGMENT OF THE COURT
30th July & 16th October, 2019
MWARIJA, J.A.:
This is an appeal from the decision of the High Court of Tanzania
(Main Registry) at Dar es Salaam (Ngwala, Matogolo and Masoud, JJ.)
dated 10/5/2019 in Miscellaneous Civil Cause No. 17 of 2018. In that
case, the respondent, Bob Chacha Wangwe petitioned the High Court
challenging the constitutionality of s. 6(1), 7(1) and (3) of the National
Elections Act, [Cap. 343 R.E. 2002] (hereinafter "the NEA"). He sought
an order declaring the said provisions of the NEA unconstitutional for
offending articles 21(1), (2) and 26 (1) of the Constitution of the United
Republic of Tanzania, 1977 as amended [Cap. R.E. 2002] (hereinafter
the Constitution).
The application was preferred by way of an originating summons
under ss. 4 and 5 of the Basic Rights and Duties Enforcement Act [Cap.
3 R.E. 2002] (the BRADEA), rule 4 of the Basic Rights and Duties
Enforcement Rules, 2014 and articles 26 (2) and 30 (3) of the
Constitution. It was supported by an affidavit sworn by the respondent.
In the petition, the respondent prayed for a declaration that sections 6
(1), 7 (1) and (3) are unconstitutional. He stated as follows in prayers 1
to 4:-
"1. A declaratory order that the provisions of section 6
(1) of the National Elections Act, (Cap 343 R.E
2015) are unconstitutional for offending the
provisions of Articles 21 (1), 21(2), and 26 (1) of
the Constitution of the United Republic o f Tanzania
of 1977 as amended without allowing Parliament
or the Government time to correct any defect in
the impugned law.
2. A declaratory order that the provisions of section
7(1) of the National Elections Act, (Cap. 343 R.E.
2015) are unconstitutional for offending the
provisions of Articles 21(1), 21(2) and 26(1) of the
Constitution of the United Republic o f Tanzania of
1977 as amended, without allowing Parliament or
the Government time to correct any defect in the
impugned law.
3. An Order that section 7(2) of the National Elections
Act, (Cap. 343 R.E. 2015) is invalid for unlawfully
denying and violating the basic rights, freedoms or
duties protected by articles 21 (1), 21 (2) and
26(1) of the Constitution of the United Republic of
Tanzania of 1977 as amended, without allowing
Parliament or the Government time to correct any
defect in the impugned law.
4. An Order that section 7(3) of the National Elections
Act, (Cap. 343 R.E. 2015) is invalid for unlawfully
denying and violating the basic rights, freedoms or
duties protected by articles 21 (1), 21 (2) and
26(1) of the Constitution of the United Republic of
Tanzania of 1977 as amended, without allowing
Parliament or the Government time to correct any
defect in the impugned law."
The grounds upon which the petition was based were stated by
the respondent in the originating summons. Referring to the rights and
duties enshrined under articles 21(1), (2) and 26 (2) of the Constitution,
he contended that the basic rights guaranteed therein are violated by ss.
6(1), 7(1) and (3) of the NEA. The particulars of the breach were stated
in paragraphs 7 - 29 of the grounds of the petition on which the learned
counsel for the respondent anchored her submission at the hearing of
the petition. The grounds essentially challenged appointment of the
Director of Elections, (the D.E), City Directors, Municipal Directors and
District Executive Directors (the Directors) to become Returning Officers.
It was contended that, since the D.E and the Directors are appointed by
the President of the United Republic of Tanzania (the President) and
considering that the NEA does not set out any safeguards to ensure that
they are independent from their appointing authority in matters of
election, their role as Returning Officers offends the provisions of articles
21 (1), (2) and 26 (1) of the Constitution.
The respondent stated as follows in paragraphs 24, 26, 27 and 28
of his grounds of petition
1124. Under the circumstances, DEDs [District
Executive Directors] and Directors of each Town,
Municipal or City Council when acting as
Returning Officers are appointed by the
President; are answerable to the President and
not the Electoral Commission and therefore have
neither the independence nor the objectivity that
is requisite in a Returning Officer under the
Constitution.
25. In addition, the National Elections Act and the
Local Government Service Act do not set out any
restrictions and/or limitations and/or safeguards
to ensure the independence and accountability of
the DEDs and the Directors of each Town,
Municipal or City Council who act as Returning
Officers, as is required by article 74(14) of the
Constitution.
26. Section 6(1) and section 7(1) of the National
Elections Act have ensured that the political party
in power and which has a President in the State
House is the party that appoints the Director of
Elections and Returning Officers for ail elections
in this country without any safeguards, least o f all
the safeguard set out in article 74 (14) of the
Constitution that prohibits persons concerned
with the conduct of elections to join any political
party.
27. In addition, sections 7(2) and 7(3) of the National
Elections Act does not provide any safeguards to
ensure the Independence of the Returning
Officers appointed by the National Electoral
Commission, as a result the said Commission can
appoint whomsoever it wishes as a Returning
Officer without complying with the prohibition set
out in article 74(14) of the Constitution."
It was contended further that the process of appointing the D.E.
and the Directors has enabled the appointing authority to have the
Returning Officers who are members of the ruling party - Chama Cha
Mapinduzi (CCM) thus violating the citizens' right of free and fair
elections because, from being affiliated to their political party, such
Returning Officers would not act independently vis-a-vis the other
political parties. It was stated as follows in paragraphs 28 and 29 of the
grounds of the petition
"28. As a resultthe 2nd and J d Respondents have
been appointing members of CCM to act as
returning officers all in an attempt to please CCM
as set out in the affidavit in support o f this
Originating summons.
29. Sections 6(1), 7(1), 7(2) and 7(3) of the National
Elections Act has the effect of ensuring that
elections in this country are owned by the
political party in power and are thereby
reprehensible to the very nature of a free
democratic society in whose governance, the
citizens participate by way of free and fair
elections."
The petition was argued by way of written submissions. The
submission made by the respondent's counsel was mainly based on the
import of the provisions of article 21(1) and (2) as well as article 74(14)
and (15) (e) of the Constitution.
Article 21(1) and (2) provides as follows:-
"21-(1) Biia ya kuathiri masharti ya ibara ya 39, ya 47 na ya
67 ya Katiba hii na ya sheria za nchi kuhusiana na
masharti ya kuchagua na kuchaguliwa, au kuteua na
kuteuliwa kushiriki katika shuguli za utawala wa nchi,
kiia raia wa Jamhuri ya Muungano anayo haki ya
kushiriki katika shughuli za utawala wa nchi, ama
moja kwa moja au kwa kupitia wawakiiishi
waliochaguliwa na wananchi kwa hiari yao, kwa
kuzingatia utaratibu uliowekwa na sheria au kwa
mujibu wa sheria.
(2) Kila raia anayo haki na uhuru wa kushiriki kwa
ukamilifu katika kufikia uamuzi juu ya mambo
yanayomhusu yeye, maisha yake au yanayolihusu
Taifa."
As for article 74 (14) and (15) (e), the same provides as
follows:-
"74(1) -(13) ... N/A
(14) Itakuwa ni marufuku kwa watu wanohusika
na uchaguzi kujiunga na chama chochote cha
siasa, isipokuwa tu kwamba kila mmoja wao
atakuwa na haki ya kupiga kura Hiyotajwa
katika ibara ya 5 ya Katiba hii.
(15) Kwa madhumuni ya ibara ndogo ya (14)
watu wanaohusika na uchaguzi ni:-
(a) - (d).... N/A
(e) Wasimamizi wote wa Uchaguzi katika miji na
wiiaya zote"
Having stated the responsibilities of Returning Officers as
described under ss. 35 D, E and F, 56, 70A, 81, 82, 86 and 120 of the
NEA, the learned counsel submitted that, from their functions, they play
a central role in the election processes. They are thus required to abide
8
by the Constitutional requirement that they must be independent from
all political parties. It was argued that, being appointees of the President
and from the affidavit filed in support of the originating summons which
shows that some of the persons who were appointed Directors are CCM
members who lost in the CCM primary elections (intra-party elections),
they cannot act independently in the performance of their functions as
Returning Officers. It was thus submitted that s. 7(1) and (3) of the NEA
which makes them Returning Officers, offends article 74(14) of the
Constitution which prohibits persons involved in conducting elections
from joining any political party.
The appellant disputed the claims that ss. 6(1) and 7(1) and (3) of
the NEA are unconstitutional. The learned Principal State Attorney who
represented the appellants at the hearing in the High Court, submitted
that, except for the City Directors who, under s. 5 of the Public Service
Act, No. 8 of 2002 are appointed by the President, the other Directors
are appointed by the Minister responsible for Local Government.
According to the learned Principal State Attorney, even though s. 7(1) of
the NEA makes the Directors to become Returning Officers, under s. 7
(2), the National Electoral Commission (NEC) may appoint by office or
name, any person amongst the public officers to become Returning9
Officers. She explained that the power vested in the NEC under s. 7 (2)
of the NEA is intended to ensure that the NEC replaces any Returning
Officer who acts against the requirement of ensuring that elections are
conducted according to the law, including observance of the safeguards
stipulated under article 74 (14) of the Constitution.
It was argued further that before a Director assumes his duty as a
Returning Officer, he must, under s. 7(5) of the NEA and regulation
16(1) (a) and (b) of National Elections (Presidential and Parliamentary
Elections) Regulations, 2015 GN. No. 307 of 2015 (the Regulations),
take an Oath of Secrecy and make a declaration that he has not joined a
political party or that he has withdrawn from membership of a political
party, if he had joined any. It was the appellants' contention that from
those measures, the contention that the Directors become Returning
Officers automatically and that they cannot act independently, is not
correct.
Other safeguards, it was argued, include firstly, existence of
standing orders for public service which prohibit the employees,
members of the NEC and Returning Officers from participating in politics
and secondly, the process of counting votes as provided under s. 57 and
10
70 -71 of the NEA which inter alia, allow appointment of agents of
political parties and candidates at polling stations. It was the appellants'
case therefore, that from those safeguards which ensure that the
provisions of article 74 (14) of the Constitution are not breached, ss.
6(1) and 7(1) & (3) of the NEA do not infringe article 21(1) (2) and
26(1) of the Constitution.
In its decision, the High Court found that the petition gave rise to
the following issue.
"... Whether the impugned provisions contravene the
provisions of articles 21 (1), 21 (2) and 26 (1) of the
Constitution which concern the right to take part in
matters pertaining to governance of the country either
directiy or through representatives freeiy eiected by
the people, the right and freedom to participate fully
in process leading to decision on matters affecting the
Petitioner, his wellbeing or nation, and duty to abide
by the Constitution and the law of the land."
Having considered the opposing submissions of the learned
counsel for the parties, the High Court answered that issue in the
affirmative. It held that s. 7 (1) and (3) of the NEA does not reflect the
safeguards stipulated under article 74(14) of the Constitution. It relied
ii
on the affidavit evidence of the respondent to the effect that the
Directors who were the Returning Officers during the 2015 elections
were CCM members. According to the learned Judges, averment by the
respondent in his affidavit was not controverted.
The learned Judges did not agree with the learned Principal State
Attorney's argument that s. 7 (1) of the NEA does not automatically
make the Directors Returning Officer upon their appointment as
Directors. They were of the view that the provision which is couched in
mandatory terms, specifically states that the Directors should be
Returning Officers. They were also of the view that s. 7(3) of the NEA
does not provide for the mechanism through which the NEC may
remove a Director and appoint any other person holding a public office
to be a Returning Officer.
With regard to the safeguards relied upon by the appellants which
subject the Directors to inter alia, make declarations that they are not
members of any political party or that they have withdrawn their
membership from such a party, the High Court found as follows at page
166 of the record of appeal
12
"we are not convinced of the learned Principal State
Attorney's argument for the following reasons: It is
dear to us that despite making such declarations, the
appointed Directors who are members and/or
supporters of political parties do not relinquish their
interests in the political parties. For the sake of
argument, assuming that the making of such
declaration is an appropriate mechanism to ensure
that the Returning Officers who have affiliation in
political parties relinquish their interest in such
political parties by simply making the declaration as
alleged, it is quite dear that justice in the conduct of
multiparty election shall not be seen to have been
done...."
The High Court was of the view that the safeguards stated under
article 74 (14) of the Constitution could be achieved by appointing
Returning Officers from amongst the Public Officers as provided for
under s. 7(2) of the NEA. The learned judges reasoned as follows:-
'!'As the said Directors fall among the Public Servants
in terms of the Public Service Act (supra), and once
appointed they become Public Service Servants, who
are prohibited by law to participate in political
activities in terms of paragraph F. 20 of the Public
Service standing orders, and who automatically are
13
restricted from engaging in political activities, we see
no point o f having such provisions of section 7(1) and
(3) of the NEA which raises eyebrows or concerns in
its constitutionality. In our considered opinion section
7(2) of the NEA meets the criteria of appointment of
Returning Officers or Assistant Returning Officers by
the Commission."
They concluded thus:-
"... it is our stand that the provisions of section 7(1)
and 7(3) of the NEA do not reflect the safeguards set
out in article 74 (14) of the Constitution which prohibit
Returning Officers from joining political parties. We
are equally satisfied that the provisions of section 7(1)
and 7(3) of the NEA violate article 21(1), 21(2) and
26(1) of the Constitution."
Concerning the appointment of the D.E., the High Court found that
there was no evidence showing that such appointment infringes articles
21 (1) and (2) and 26 (1) of the Constitution. Similarly, with regard to s.
7 (2) of the NEA which empowers the NEC to appoint Returning Officers
from amongst the public officers, the High Court was of the view that
such provision does not contravene articles 21 (1), (2) and 26 (1) of the
Constitution. It found that, since s. 7 (2) of the NEA suffices to serve
the purpose of appointment of Returning Officers, it is unnecessary to14
leave intact s. 7 (1) and (3) of the NEA as it does not reflect the
safeguards provided under article 74 (14) of the Constitution. It
observed that, in view of the provisions of article 27 (2) of the
Constitution which was relied upon by the appellant at the hearing of
the petition to justify the use of the Directors as Returning Officers, s. 7
(2) of the NEA alone is sufficient to serve that purpose.
On the safeguards relied upon by the appellants; that the Directors
are subjected to swear the oath of secrecy, make declaration that they
are not members of any political party or that they have withdrawn their
membership, the High Court found that those measures are insufficient
to ensure independence of the Returning Officers as envisaged under
article 74 (14) of the Constitution.
On those findings, the High Court held that the provision of s. 7(1)
and (3) of the NEA violate articles 21(1), (2) and 26(1) of the
Constitution and therefore declared them void for being unconstitutional
and thus proceeded to strike them out.
The appellants were aggrieved by the decision of the High Court
hence this appeal which is predicated on the following eleven grounds:-
15
"1. That, the learned Judges erred in law and fact by
declaring the provisions of Section 7(1) and 7(3) of
the National Elections Act [Cap. 243 R.E. 2015]
unconstitutional based on Article 74(14) of the
Constitution which was neither pleaded as a violated
Article nor made part o f the reliefs sought by the
Petitioner.
2. That, the learned Judges erred in law and fact by
declaring the provisions of section 7(1) and 7(3) of
the National Elections Act [Cap. 343 R.E. 2015]
unconstitutional based on Article 74(14) of the
Constitution which does not fall under Part III of
Chapter One of the Constitution.
3. That, the learned Judges erred in law and in fact in
finding that City Director, Municipal Director and
District Executive Director upon appointment
automatically become Returning Officers for purpose
of conducting elections.
4. That, the learned Judges erred in law and in fact for
determining and assessing the provisions of section
7(1) and 7(3) of the National Elections Act, [Cap. 343
R.E. 2015] in isolation of other provisions of the same
Act and the entire scheme of the whole electoral
management process.
16
5. That, the learned Judges erred in law and fact in failing
to properly assess the prohibitions under Article
74(14) and the safeguards set out in the National
Elections Act, [Cap. 343 R.E. 2015] and its
regulations, Public Service Act, [No. 8 o f2002] and its
regulations as well as other laws and regulations
relating to the conduct and management of elections.
6. That, the learned Judges erred in law and in fact by
failing to appreciate the legal effect o f oath of secrecy
and declaration of withdrawal o f membership from a
political party or not to be a member of a political
party taken by Returning Officer before assuming
office.
7. That, the learned Judges erred in law and in fact by
failing to properly indicate how the provisions of
section 7(1) and (3) of the National Elections Act
[Cap. 343 R.E. 2015] violate Article 21(1), (2) and
26(1) of the Constitution of the United Republic of
Tanzania, 1977 (as amended).
8. That, the learned Judges erred in law and in fact by
failing to establish the relevance, admissibility,
authenticity reliability and probative value of the
evidence adduced in the affidavit relating to the
allegations that some Returning Officers are members
and supporters o f the ruling party.
17
9. That) the learned Judges erred in law and in fact by
failing to take into account the positive role of the
impugned Returning Officers in the electoral
management processes.
10. That, the learned Judges erred in law and in fact by
usurping legislative powers reserved for parliament in
striking out the impugned provisions of section 7(1)
and (3) of the National Elections Act, Cap. 343 R.E.
2015.
11. That, the learned Judges erred in law and in fact by
not affording time to the appellants to rectify the
defects found in the National Elections Act [Cap. 343
R.E. 2015] before declaring the provisions of section
7(1) and (3) of the same Act unconstitutional."
By these grounds, the appellant prayed to the Court to find that the
decision of the High Court did not address itself to pertinent issues put
forth by the appellants and consequently allow the appeal with costs.
At the hearing of the appeal, the appellants were represented by
Dr. Clement Mashamba, learned Solicitor General assisted by a team of
learned State Attorneys; Messrs Mark Mulwambo and George Mandepo,
Ms. Alesia Mbuya, Messrs Ponsiano Lukosi, Evarist Mashiba, Lucas
Malunde, all learned Principal State Attorneys, Ms. Tumaini Mfikwa,18
learned Senior State Attorney, Ms. Grace Lupondo, Ms. Narindwa
Sekimanga, Mr. Yohana Marco and Ms Fausta Mahenge, all learned State
Attorneys.
On the other hand, the respondent was represented by Ms. Fatma
Karume, learned counsel who was also being assisted by a team of
advocates; Mr. Mpale Mpoki, Dr. Rugemeleza Nshala, Messrs Fulgence
Massawe, Jeremia Mtobesya and Jebra Kambole, learned advocates.
In compliance with Rule 106 (1) of the Tanzania Court of Appeal
Rules, 2009 as amended (the Rules) the appellants filed their written
submission which was adopted at the hearing. On his part, the
respondent complied with the requirement of filing reply submission in
terms of Rule 106 (7) of the Rules and similarly, the submission was
adopted at the hearing. The learned counsel for the parties also
exercised the right of highlighting their written submissions during the
hearing of the appeal. The appellants' written submission filed by Dr.
Mashamba was also expounded at the hearing by Mr. Mulwambo. On
the part of the respondent, the oral submission highlighting the reply
submission filed by Ms. Karume was made by the said learned counsel
as well as Mr. Mpoki, Dr. Nshala, Messrs Massawe, Mtobesya and
19
Kambote. Ms. Mbuya and Messrs Lukosi and Mandepo made rejoinder
submissions. We have taken into consideration the invaluable
submissions made by all learned counsel for the parties.
In his written submission, Dr. Mashamba pointed out that the
grounds of appeal raise the following four main issues for
determination:-
" (i) Whether the learned trial Judges were justified in
declaring the provisions of Section 7(1) and (3) of
the NEA unconstitutional;
(ii) Whether the learned Judges were justified in
holding that Section 7(1) and (3) of the NEA are
unconstitutional for being superfluous or
unnecessary while saving Section 7(2) of the NEA
as serving the purpose of managing elections at
the constituency level;
(iii) Whether the learned trial Judges were justified in
holding that the President of the United Republic
of Tanzania appoints DEDs as Returning Officers;
and
(iv) Whether the learned trial Judges were justified in
holding speculative views about the true
interpretation and application of the law in Section
7(1) and (3) of the NEA to the effect that it does20
not provide adequate safeguards envisaged under
Article 74(14) of the Constitution."
Submitting on the 1st issue which arises from the 1st, 2nd, 10th and
11th grounds of appeal, the learned Solicitor General argued that the
learned High Court Judges erred in declaring the provisions of s. 7(1)
and (3) of NEA unconstitutional on the ground that those provisions
contravene the provisions of article 74 (14) of the Constitution. With
regard to the 1st and 2nd grounds of appeal, Dr. Mashamba contended
that since the petition was not brought under article 74 (14) of the
Constitution, the High Court was not justified in finding that the
impugned provisions offend articles 21(1), (2) and 26(1) of the
Constitution. Relying on the provisions of s. 6 of the BRDEA, the learned
Solicitor General argued that since article 74 (14) was not pleaded, the
same could not have been acted upon to find that the effect of being
violated by s. 7 (1) and (3) of the NEA, amounts to violation of articles
21(1), (2) and 26(1) of the Constitution.
He stressed that, under s. 6 (1) of the BRADEA, it is only the
matters falling under Part III of Chapter one of the Constitution which
may be pleaded as having been infringed, that is; the rights enshrined
under articles 12 -19. In the circumstances, he argued, the High Court21
acted wrongly in declaring s. 7(1) and (3) of the NEA unconstitutional on
account that it offends article 74(14) of the Constitution which does not
fall under that part of the Constitution. To bolster his argument, he
cited the cases of Makori Wassaga v. Joshua Mwaikambo and
Another [1987] TLR 88, Peter Karanti v. Attorney General, Civil
Appeal No. 3 of 1998; Elisa Moses Msaki v. Yesaya Ngetau Matee,
Civil Application No. 2 of 1999 (both unreported); James Funke
Gwagilo v. Attorney General [2002] TLR 455; Capt. Harry Gandy
v. Gaspar Air Charters Ltd [1956] EACA 139 and Central Bank of
Kenya v. Nkabu [2002] 1 EA 34.
It was further argued that, the jurisdiction of the High Court in
entertaining a petition for enforcement of rights and duties under
articles 12-29 of the Constitution is governed by article 30 (3) of the
Constitution and s. 4 of the BRADEA. Citing s. 6 (d) of that Act, the
learned Solicitor General argued that, in such petitions, a specific
provision of the Constitution which is alleged to have been breached
must be cited. Since article 74 (14) was not cited, Dr. Mashamba
argued, the learned Judges erred in invoking it to declare s. 7(1) and (3)
unconstitutional.
22
On grounds 10 and 11, it was submitted that the High Court erred
in failing to allow the Parliament to correct the defect which was found
to have been occasioned by the provisions of s. 7(1) and (3) of the NEA.
In failing to do so, the learned Solicitor General went on to argue, the
High Court usurped the powers vested in the Parliament by article 63 of
the Constitution read together with s. 13 of the BRADEA. Dr. Mashamba
supported his argument by citing the cases of Judge in-Charge, High
Court, Arusha and Attorney General v. N.I.N Munuo Ng'uni, Civil
Appeal No. 45 of 1999 (unreported); Attorney General v. W.K.
Butambala [1993] TLR 46 and BAWATA and Others v. Registrar of
Societies, Misc. Civil Cause No. 27 of 1997 (unreported) in which, after
having found that the impugned provisions were unconstitutional, the
Court did not strike out those provisions but allowed time to Parliament
to amend them. He went on to argue that, leaving s. 7(2) of the NEA as
the only provision for appointment of Returning Officers who are not
Directors, will cause a number of practical problems in the management
of the election processes as a whole.
On the 2nd issue, which arises from the 5th and 7th grounds of
appeal, the leaned Solicitor General challenged the finding by the High
Court that there is no justification for having the provision of s. 7(1) and23
(3) because s. 7 (2) of the NEA suffices to achieve the purpose of
ensuring compliance with the requirement of article 74 (14) of the
Constitution. It was argued for the appellants that the holding by the
High Court, that s. 7 (1) and (3) of the NEA are open to abuse on
account of not being reflective of the safeguards stated under article 74
(14) of the Constitution, is erroneous because the three provisions save
different purposes; first, s. 7 (1) provides for appointment of Directors
as Returning Officers, Second, s. 7 (2) provides for appointment of any
public officer where, for any reason, a Director cannot be so appointed
and third, s. 7 (3) vests the NEC with the power of appointing any
other person holding a public office to be a Returning Officer.
On the contention that s. 7 (1) and (3) of the NEA does not reflect
the safeguards stated under article 74 (14) of the Constitution, Dr.
Mashamba argued that the provisions need not reflect those safeguards
because the two provisions verse different purposes. With regard to the
finding by the High Court that s. 7 (1) and (3) of the NEA are prone to
abuse, he contended that, in the absence of express indication on how
those provision may be abused, that finding is erroneous because it was
based on mere speculations and inferences. The learned Solicitor
General argued further that the finding by the High Court that the said24
provisions are unconstitutional is incorrect. He submitted that the
constitutionality of a provision or statute is not found in what could
happen in its operation. It is found in what it provides, he argued. He
stressed that where a provision is reasonable and valid, the mere
possibility of its being abused in its operation does not make it invalid.
To support his argument, he cited the case of Rev. Christopher
Mtikila v. Attorney General [1995] TLR 31.
Dr. Mashamba contended therefore that the finding that the two
provisions are likely to be abused is based on apprehension and as such,
the holding that the 75 Directors are likely to be biased is erroneous, the
contention having been based on speculations and inferences. Citing
also the case of U.S. v. Bulter 297 U.S. I. [1936], the learned Solicitor
General argued that the High Court erred in holding that the impugned
provisions are open to abuse because that is not a criterion for finding a
provision of a statute unconstitutional. He stressed that the High Court
ought to have squarely fitted the impugned provisions into the articles of
the Constitution which were found to have been violated and decide
whether or not there is such violation, the duty which, according to his
argument, was not undertaken by the High Court.
25
Relying also on the principles of judicial interpretation as
enunciated in the cases of Julius Ishengoma Francis Ndyanabo v.
Attorney General [2004] TLR 14 and Attorney General v. Jeremia
Mtobesya, Civil Appeal No. 65 of 2016 (unreported), the learned
Solicitor General submitted that the High Court erred in failing to be
guided by those principles and instead, it based its decision on mere
speculations that the Directors may abuse their positions in the course
of performing their duties as Returning Officers. The principles stated in
the two cited cased above are first, that, until the contrary is proved, a
legislation is presumed to be constitutional, and second, that a statute
should receive such construction as will make it operative not
inoperative.
He went on to argue that, the finding by the High Court that the
Directors may abuse their positions as Returning Officers was hinged on
matters of facts, yet the learned High Court Judges did not analyse the
facts pointing to the contemplated abuse. He said that, as a matter of
principle, matters of fact relied upon by the respondent must have been
proved so as to be relied upon to render the impugned provisions
unconstitutional. In that regard, he relied on the case of Rev. Mtikila
(supra).26
With regard to the finding by the High Court that the impugned
provisions are unconstitutional because they do not reflect the
safeguards stipulated under article 74 (14) of the Constitution, it was Dr.
Mashamba's submission that the safeguards are adequately provided for
under s. 7 (5) of the NEA which requires a Director to subscribe to an
oath of secrecy and comply further with reg. 16(1) of the Regulations
which requires a Director to take the oath of secrecy and to declare that
he is not a member of a political party or that he has withdrawn his
membership from a political party. He stressed that the conditions are
effective because the same must be complied with by a Director before
he assumes the functions of a Returning Officer. He submitted further
that under s. 57 (1) (b) and (c) of the NEA, political parties are afforded
the right to have an agent at a polling station to take care of their
interests in the conduct of polling exercise and furthermore, that under
s. I l l of the NEA, any person specified under that section may file a
petition to challenge the election results. He submitted also that,
whereas under s. 89 (c) of the NEA misconduct on the part of a
Returning Officer has been criminalized, under the ss. 108, 104 and 107
of the Penal Code, [Cap 16 R.E. 2002], a Returning Officer is liable to be
charged in the event he commits perjury after taking the oath of secrecy
27
under s. 7 (5) of the NEA. According to the learned Solicitor General, in
its decision, the High Court did not consider these safeguards which
according to his submission, are sufficient to ensure compliance with
article 74 (14) of the Constitution.
In response to the argument made in respect of the 1st and 2nd
issues which, as stated above, arise from the 1st, 2nd, 5th, 7th, 10th and
11th grounds of appeal, Ms. Karume began her submission by opposing
the contention that the learned High Court Judges erred in their decision
to the extent argued by the appellants. She countered the arguments
made by the learned Solicitor General, first, that in order to challenge s.
7(1) and (3) of the NEA article 74(14) must have been pleaded.
Secondly, she disagreed with the contention that the evidence
contained in the supporting affidavit, to the effect that the Directors who
were Returning Officers for 75 Constituencies during the 2015 elections
and the Returning Officer for Kinondoni Constituency during the 2018
bye-election, were CCM members who participated in 2015 CCM primary
elections should not have been relied upon for want of authenticity.
By way of prelude also, the learned counsel opposed the
statement in the appellants' written submission that the High Court had
28
found the provisions of s. 7(1) and (3) superfluous and unnecessary.
She submitted that the position taken by the High Court is that,
although the use of Directors as Returning Officers, had the effect of
saving Government funds and thus being in line with the requirements
of article 27(1) of the Constitution, their role as both the Directors and
Returning Officers while s. 7(2) allows the NEC to appoint Returning
Officers from amongst the public officers, makes existence of s. 7(1) and
(3) of the NEA unjustified.
With regard to the arguments that article 74 (14) was not pleaded,
Ms. Karume started by stating the gist of the petition filed in the High
Court, that it was based on the need to protect the citizens' right of
taking part in matters relating to governance of the country by being
elected or through representatives who have been elected through a
free and fair elections as guaranteed by article 74(14) of the
Constitution. She submitted that the rights to free and fair elections is
one of the basic rights enshrined under articles 21(1), and (2) and
26(1) of the Constitution. Whereas article 21(1) and (2) provides for the
basic rights and duties, article 26(1) provides for the duty of observing
the rule of law by abiding by the Constitution and the laws of the United
Republic. She argued therefore, that article 74(14) provides for29
safeguards intended to ensure that, in exercising their democratic rights
under articles 21(1) (2) and 26(1) of the Constitution, the citizens are
assured that elections are conducted freely and fairly.
For that reason, she argued, any provision of the law which does
not reflect those safeguards, goes against the citizen's rights and any
affected person has a right to challenge any law which occasions such
breach under articles 21(1), (2) and 26(1) of the Constitution. To bolster
her argument that the Constitution guarantees free and fair elections,
the learned counsel cited the case of Attorney General and 2 Others
v. Aman Walid Kabourou [1996] TLR 156. She added that, such
guarantee is also enshrined under article 74(7) and (11) of the
Constitution which requires that the NEC shall be an autonomous body.
On the submission that the affidavital evidence deposed by the
respondent is not credible for want of authenticity, Ms. Karume replied
that the facts as set out in the affidavit were not controverted and
therefore the High Court rightly acted on that evidence to find that the
mentioned Returning Officers were CCM members. She argued further
that since article 74(14) of the Constitution prohibits all persons
concerned in conducting elections from joining any political party,
30
utilizing as Returning Officers, the Directors who, according to the
respondent's affidavit were CCM members, by acting under s. 7(1) and
(3) of the NEA, is a breach of articles 21(1), (2) and 26(1) of the
Constitution.
With regard to the provisions of reg. 16(1) (a) and (b) of the
Regulations which must be complied with by persons who are appointed
as Returning Officers before they assume their duties in that capacity,
the respondent's counsel contended that the requirements do not
amount to sufficient safeguards because they do not ensure political
neutrality on the part of the Directors. She argued that, since under the
Code of Conduct for Public Officers (the Code), public officers are
allowed to join political Parties so long as they adhere to the principles
set out under part IX of the Code and since the Directors are public
officers, their role as Returning Officers offends article 74(14) of the
Constitution. She argued that, even if a Director makes a declaration to
withdraw from membership of his political party, that declaration will not
be effective because in effect, he had already joined a political party
whereas article 74(14) prohibits joining any political party.
31
The learned counsel interpreted that provision to mean that, once
a person has joined a political party, he is disqualified from becoming a
Returning Officer. Similarly, Ms. Karume submitted, not only that the
oath of secrecy is to be taken post the Director's appointment as
Returning Officers but there is no legal mechanism which has been put
in place to ensure that the Director who has joined a political party
practically withdraws his membership from his party. She submitted
further that the other safeguards reiied upon by the appellants are
equally not effective, more so because those conditions are not reflected
in the NEA.
With regard to the appellant's submission that a Returning Officer
may be removed when in the exercise of his duties commits a
misconduct, she argued that such disciplinary measure is neither
stipulated in the NEA nor does the said law provide for the right of
objecting to the exercise by a Director, of the functions of the Returning
Officer on the ground of misconduct.
On the submission by Dr. Mashamba that political parties have the
right of appointing agents as provided for under s. 57 of the NEA, the
respondent's counsel contended that, from the functions of a Returning
32
Officer as stated under ss. 35 D-F, 56, 70A, 80-82, 86 and 120 of the
NEA, which are exercised throughout the election process, existence of a
right to appoint a polling agent is confined to the voting process at the
polling stations while elections are not a one day's activity but a
continuous process.
As for criminalization of misconduct under s. 89A of the NEA, the
learned counsel contended that such measure is not an effective
safeguard because the section caters only for the manner in which a
Returning Officer conducts election while article 74(14) of the
Constitution takes care of the type of a person concerned with the
conduct of elections. She stressed that punishment does not prohibit a
Director who has joined a political party from becoming a Returning
Officer. In a similar vein, Ms. Karume argued, the issue of perjury goes
to the process rather than personality and therefore, she said, taking of
the oath of secrecy does not ensure compliance with the requirements
of article 74 (14) of the Constitution.
In her response to the appellants' complaint on the 11th ground of
appeal that the High Court erred in failing to allow the Government to
rectify what the learned Judges found to be the defects in the impugned
33
provisions, relying on article 30(5) of the Constitution and s. 13(2) of the
BRADEA, the respondent's counsel submitted that the learned Judges
properly exercised their discretion of either striking out the impugned
provision or affording the Government time to effect the requisite
rectification. She cited the Mtobesya case (supra) to support her
argument. She stressed that, in the particular circumstances of this
case, the learned Judges were justified in striking out the impugned
provisions instead of allowing the Government to amend the defects
found by the High Court and more so, because the appellants did not
seek to be afforded that opportunity.
Finally, as regards the appellants' submissions that under s. I l l
the NEA, a person who, if aggrieved by the election results, has the right
of disputing such results by filing an election petition in the High Court,
the respondent's counsel contended first, that under s. 108(1) and (2)
of the NEA, the presidential election results cannot be challenged, and
second, as for the parliamentary elections, that is the right which may
be exercised after declaration of the results and does not therefore, avail
a person the opportunity of challenging appointment of a Director who
does not qualify in terms of article 74(14) of the Constitution from
assuming the functions of a Returning Officer.
34
She went on to argue that, because under article 36(4) of the
Constitution, the President is a disciplinary authority over the Directors,
they cannot act independently in their capacity as Returning Officers as
required by article 74(7) and (11) of the Constitution because they
remain answerable to the President. She cited as an example, the 2nd
and 3rd appellants and argued that, as proved by the supporting
affidavit, they conducted the 2015 elections while they were active CCM
members. The learned counsel stressed that the import of s. 7(1) and
(3) of the NEA is to make the elections in the country to be owned by
the political party which is in power and thus deviate from the citizens'
constitutional right to free and fair elections.
According to the learned counsel, the Constitution prohibits joining
a political party, not that a person who has joined a political party may
withdraw his membership and participate in the conduct of elections.
Having considered the arguments of the learned counsel for the
parties on the 1st and 2nd issues, with regard to grounds 1 and 2 of the
appeal, we agree that under s. 6 of the BRADEA, in bringing a petition,
the petitioner must base his petition on any of the articles contained in
Part III of Chapter One of the Constitution.
35
In this case, the respondent challenged inter alia, s. 7(1) and (3)
of the NEA on account that it infringes article 74(14) of the Constitution.
His petition was based on articles 21(1), and (2) and 26(1) of the
Constitution. We do not however, agree with the appellants that since
article 74(14) was not pleaded, the High Court erred in entertaining the
petition. This is because, article 74(14) has a bearing on how the
citizens' rights under article 21(1) and (2) are safeguarded. Similarly,
article 26(1) imposes to every person the duty of abiding by the
Constitution and the laws of the United Republic and therefore, the
respondent acted properly in applying for redress against the alleged
infringement of article 74(14) which sets out the safeguards for proper
exercise by the citizens, of their rights under article 21(1) and (2) of the
Constitution. We do not therefore, find merit in the 1st and 2nd grounds
of appeal.
As for the 10th and 11th grounds of appeal, we need not be
detained much in disposing them. Article 30(5) of the Constitution, in its
official Kiswahili version, provides as follows:-
"Endapo katika shauri ioiote inadaiwa kwamba sheria
yoyote iiiyotungwa au hatua yoyote iiiyochukuliwa na
Serikali au mamiaka nyingine inafuta au inakatiza
haki, uhuru na wajibu muhimu zitokanazo na ibara ya
36
12 hadi 29 za Katiba hii, na Mahakama Kuu inaridhika
kwamba sheria au hatua inayohusika, kwa kiwango
kinachopingana na Katiba ni batili au kinyume cha
Katiba basi Mahakama Kuu ikiona kuwa yafaa au hali
au masifahi ya jamii yahitaji hivyo, badala ya kutamka
kuwa sheria au hatua hiyo ni batiii, itakuwa na uwezo
wa kuamua kutoa fursa kwa ajili ya Serikaii au
mamiaka nyingine yoyote inayohusika kurekebisha
hitiiafu iiiyopo katika sheria inayotuhumiwa au hatua
inayohusika katika muda na kwa jinsi itakavyotajwa
na Mahakama Kuu, na sheria hiyo au hatua
inayohusika itaendeiea kuhesabiwa kuwa ni ha/aii hadi
ama marekebisho yatakapofanywa au muda
uliowekwa na Mahakama Kuu utakapokwisha, mradi
muda mfupi zaid ndio uzingatiwe."
As can be discerned from that article, the same vests the High
Court with discretionary power of declaring any provision of law void if it
finds it to be unconstitutional. It also vests the High Court with
discretionary power of affording the Government or other relevant
authority, the opportunity to rectify the defect found in the relevant
provision of the law. In the circumstances, the exercise by the High
Court of such discretion did not amount to usurping the powers of the
Legislature as suggested by the appellants. Furthermore, the High Court
37
did not err in not affording the Government the opportunity of amending
the defects complained of by the respondent because, as submitted by
the respondent's counsel, they did not seek to be afforded that
opportunity. For that reason, there was no material upon which the High
Court could consider to exercise its discretion to allow for amendments
of the defects which the learned Judges found to have been established.
In the circumstances, the 1st 2nd, 10th and 11th grounds of appeal
are devoid of merit. As a result, the same are hereby dismissed.
With regard to the argument made in support of the 7th ground of
appeal, that the learned High Court Judges did not indicate how s. 7(1)
and (3) of the NEA violates articles 21(1), (2) and 26(1) of the
Constitution, we similarly do not find merit in that ground of appeal. We
have found above that in his petition, the respondent contended that s.
7(1) and (3) of the NEA does not reflect the safeguards stipulated under
article 74(14) of the Constitution. The High Court agreed with the
respondent and proceeded to declare that provision unconstitutional. In
the ruling at page 165 of the record, the High Court observed as
follows:-
"On our part, we are settled that the provisions of
section 7 (1) and (3) of the NEA do not reflect the38
safeguards enshrined under article 74 (14) of the
Constitution. The evidence of the Petitioner in his
affidavit was not controverted in the counter-affidavit
by the Respondents. This evidence clearly shows how
the provisions of section 7 (1) and (3) of the NEA are
open to abuse by appointing authorities. In particular,
the evidence shows how the appointed Directors of
Local Government authorities who, by virtue of
section 7(1) of the NEA, automatically and in
mandatory terms become Returning Officers."
The High Court went on to state as follows:-
"The uncontroverted evidence of the Petitioner has
also clearly shown that there are known Directors who
are members and/or supporters of the ruling party. As
already pointed out, these Directors, as a matter of
law, automatically become Returning Officers for the
purpose of conducting elections irrespective of being
members and/or ardent supporters of the ruling
party".
The passages which we have reproduced above are elaborative of
the approach taken by the High Court in arriving at the conclusion that
the impugned section of the NEA violates articles 21(1), and (2) and
26(2) of the Constitution. Whether or not that finding is correct is a
39
different issue which will shortly be discussed in succeeding grounds of
appeal. Ground 7 of the appeal is thus equally devoid of merit and is
hereby dismissed.
We now turn to consider the 3rd issue which arises from the 3rd
and 6th grounds of appeal. The learned Solicitor General argued that the
Directors do not become Returning Officers automatically as held by the
High Court because their appointment under s. 7(1) and (3) of the NEA
is not absolute. According to his submission, the Directors assume their
functions as Returning Officers after complying with the conditions
stipulated under s. 7(5) of the NEA and reg. 16 (1) and (2) of the
Regulations.
Furthermore, he argued, in the exercise of such functions, they
are answerable to the NEC which has unfettered power of removing
them in the event of their failure to carry out their duties in accordance
with their oath of secrecy and their declaration on not being members of
any political party or that they have withdrawn their membership from a
political party. Dr. Mashamba stressed on the sanctity of oath and
declaration contending that, the same are effective measures in
ensuring compliance with the safeguards stipulated under article 74 (14)
of the Constitution.
40
In reply, the respondent's counsel submitted that since it is the
President who appoints the Directors on the advice of the Local
Government Commission, they cannot be in the circumstances be said to
be independent from political parties because the law which vests the
President which such power does not set out the requisite qualification
intended to guarantee compliance with the conditions stipulated under
article 74(14) of the Constitution. She however, relied on ss. 22(2) and
31(1) of the Local Government Service Commission Act No. 10 of 1982
which has since been repealed by s. 35 (c) of the Public Service Act. No.
8 of 2002.
Having duly considered the rival arguments of the learned counsel
for the parties on this issue, we agree with the appellants that the High
Court erred in holding that, upon their appointments, the Directors
automatically become Returning Officers. It is not disputed that before
assumption of their functions as Returning Officers, the Directors must
comply with the provisions of s. 7(5) of the NEA and reg. 16(1) of the
Regulations. S. 7(5) of the NEA states as follows:-
"Every Returning Officer and Assistant Returning
Officers shaii, before embarking on the functions of
that office, take and subscribe to an oath of secrecy in
the prescribed form before a Magistrate."
41
With regard to reg. 16(1) of the Regulations, the same provides as
follows:-
"16(1) Every regional elections coordinator, a
returning officer and an assistant returning
officer shall, before assuming duties-
(a) take an oath of secrecy prescribed in Form
No. 6 set out in the First Schedule before a
Magistrate; and
(b) make a declaration prescribed in Form
No. 7 set out in the First Schedule to
these Regulations before a Magistrate
or a Commissioner for Oaths that he is
not a member of any political party or
that he has withdrawn his
membership from a Political Party - "
[Emphasis added.]
Since therefore, it is a mandatory requirement that the Returning
Officers must comply with the conditions stated in the above quoted
provisions of the law before they assume their functions, the finding by
the High Court that the Directors automatically become Returning
Officers upon their appointment is with profound respect, erroneous.
42
As stated above when considering the 1st and 2nd issues, learned
counsel for the respondent has however, challenged the effectiveness of
the measures stipulated under the above stated provisions of the law.
We think that we can conveniently consider that argument when
determining the 4th issue which encompasses the 4th, 5th, 8th and 9th
grounds of appeal. Ground 5 of the appeal also contains matters which
have been raised in the 6th ground of appeal and can thus be considered
when determining the 4th issue.
On the 4th issue, the learned Solicitor General argued that the
learned Judges misinterpreted the provisions of s. 7(1) and (3) of the
NEA. The basis of his contention is that, the provisions should not have
been read in isolation of other laws relating to the management of
election processes. He submitted that, had they considered such other
provisions of the laws, which include the provisions of the Public Service
Act and s. 57 (1) (b) and (c) of the NEA entitling political parties to
appoint polling agents, the learned Judges would not have found that
the impugned provisions infringe article 74(14) of the Constitution.
With regard to the finding by the High Court that the respondent
had established by evidence that the Directors who were the Returning
Officers for Kinondoni Constituency during the February, 2018 bye-
43
elections, in the names of Aron Kagurumjuli, Mustafa Mkwama and
Harrieth Mwakifulefule were CCM members, Dr. Mashamba faulted the
learned Judges for having acted on electronically generated evidence,
that is, the photographs of the three named persons said to have put on
CCM uniforms, the evidence which according to him was unreliable. He
contended that the High Court did not only fail to weigh the authenticity
and reliability of that kind of evidence before it acted on it but it so
acted in contravention of s. 18 (1) and (2) of the Electronic Transactions
Act, 2015. He argued also that the High Court wrongly adjudged all
other 75 Directors that they were CCM members by acting on unreliable
evidence of the respondent.
Dr. Mashamba challenged also the trial court's findings that by
virtue of their appointments, the Directors are members and/or ardent
supporters of the ruling party and thus despite the taking of oath of
secrecy and making of declaration under reg. 16 (1) of the Regulations,
they do not practically relinquish their interests in their political party. He
reiterated his argument on the effect of the oath of secrecy and the
declaration which the Directors make before they assume their functions
as Returning Officers.
44
He submitted further that the learned Judges erred by failing to
recognize the positive role of the Directors. He contended that the use
of Directors as Returning Officers has a constitutional and political
history dating back to the early years of multi-party elections. He
pointed out that at one time, NEC appointed Returning Officers from
outside the Public Service but that exercise, he said, proved to be
difficult because the performance of such officers was hindered by
several factors including financial constraints, limited office facilities and
expertise in the electoral processes management. It was from that
experience, he argued, the process of appointing Returning Officers
from outside the public service was changed. He added that the use of
Directors is advantageous because they are accountable by virtue of
their positions. This advantage, he said, applies to all those public
servants who are involved in the conduct of elections.
In response, Ms. Karume contended that the provisions of other
statutes and regulations cannot be used to decide the issue whether or
not the impugned provisions are unconstitutional. She reasoned that,
since the requisite safeguards under article 74(14) of the Constitution
are not reflected in the impugned provisions, the High Court rightly
found that s. 7(1) and (3) of the NEA violates articles 21(1), (2) and
45
26(1) of the Constitution, Relying on the case of Rev. Mtikila (supra),
she argued that the Court could only rely on the provisions of other laws
when harmonizing the relevant provisions of the NEA relating to the
management of the electoral processes.
On the historical and political relevance of using the Directors as
Returning Officers, the learned counsel for the respondent urged the
Court to disregard that argument on account that the same was not
raised in the High Court. Notwithstanding that position, she argued that
such a positive role cannot justify violation of article 74(14) of the
Constitution. According to the learned counsel, in effect, their role as
Returning Officers contravenes article 74(14) of the Constitution.
Concerning the electronically generated evidence contained in the
supporting affidavit, Ms. Karume contended first, that such evidence
was not controverted and second, that admissibility thereof was not at
issue because the point was not raised in the trial court. She added that,
since the fact that the said Directors were CCM members was stated and
verified and because the appellants filed a counter affidavit in which,
they did not controvert the said fact, it is inappropriate at this stage of
the proceedings to raise the issue of admissibility of the photographs.
46
Citing the case of Bruno Nyalifa v. The Permanent Secretary,
Ministry of Home Affairs and Hon. Attorney General, Civil Appeal
No. 82 of 2017 (unreported), the respondent's counsel submitted that,
being an annexture to the affidavit, the document formed part of
evidence and did not require to undergo the admissibility test. She
added that, in any case, under rule 15(3) of the Basic Rights and Duties
Enforcement Rules, the appellants had the right of calling the deponent
for cross-examination but did not exercise that right.
We have duly considered the contending arguments made by the
parties' counsel on the above stated grounds of appeal which gave rise
to the 4th issue. To start with the 9th ground of appeal, the same can be
disposed of briefly. We have to point out that, we agree with Ms.
Karume that even though the use of Directors as Returning Officers has
positive impact in the management of electoral processes, those
functions must be exercised in accordance with the provisions of article
74(14) of the Constitution. The positive role of the Directors shall not
therefore, justify violation of that article of the Constitution even if it is
intended to save Government funds in terms of the requirements of
article 27(1) of the Constitution. We therefore do not find merit in that
ground of appeal. The same is hereby dismissed.
47
Concerning ground 8 of the appeal, it is not disputed that the
copies of photographs which were attached to the respondent's affidavit
are electronically generated documents. The argument by the learned
counsel for the respondent was, first, that the averment by deponent
was not disputed and secondly, that the appellants were at liberty to
apply to call the deponent for cross-examination. With respect to the
respondent's counsel, her contention that the appellants did not object
to the contents of the electronically transmitted documents is not
correct. The averment in question was made by the respondent in
paragraphs 15 and 16 of his affidavit where he deposed as follows:-
"That during the Kinondoni Constituency Bye-e/ection
of 17th February, 2018, I was astounded to see that
the District Executive Officer as a Returning Officer
under Aron Kagurumjuii is a member and/or
supporter of CCM. There is now produced and
shown to me pictures of Aron Kagurumjuii in his CCM
uniform and his uniform as a Returning Officer for the
2nd Respondent, which are herewith attached and
marked'BC W2'."
16. That in addition, during the said Kinondoni Bye-
election, the 2nd and J d Respondent appointed
48
Returning Officers who were cieariy CCM party
members/supporters." [Emphasisadded.]
The respondent named the two other persons referred to in
paragraphs 15 and 16 of his affidavit to be Mustapha Mkwama and
Harrieth Mwakifulefule. Their photographs allegedly showing them in
CCM uniforms were attached to the affidavit and marked 'BCW 3' and
BCW 4' respectively.
In paragraphs 11 and 12 of their joint counter affidavit, the
appellants replied to the contents of paragraphs 15 and 16 of the
respondent's affidavit as follows:-
"11. That, the contents of paragraph 14 and 15 of the
affidavit are denied. It is further stated that the said
contents are speculative, unfounded and
argumentative.
12. That the contents of paragraph 16 of the Affidavit are
denied. The Respondents state that, no political
appointees are involved in coordination and conduct
of election processes."
It was argued for the respondent that since the document was
annexed to the affidavit and because from the nature of the
proceedings, the admissibility procedures were not applicable, the
49
document was properly acted upon by the High Court as reliable
evidence. Acting on the respondents affidavit, the High Court made the
following general conclusion:-
"The uncontroverted evidence of the Petitioner has
also clearly shown that there are known Directors who
are members and/or supporters of the ruling party..."
We do not, with respect, agree with that finding. First, as shown
above, in their counter affidavit the appellants denied the allegation that
the said persons were active CCM members at the time when they were
executing their functions as Returning Officers. Furthermore, in the
written submission, they contended as follows:-
"... the Directors mentioned may have been
participating in politics prior to their appointment, but
once appointed to hoid such public offices, as public
servants holding the roles of Returning Officers, under
F. 20 of the Standing Order, they will automatically be
restricted from engaging in political activities."
Secondly, the case of Bruno Nyalifa (supra) cited by the
respondent's counsel is distinguishable. In that case, the Court did not
state that once a document is attached to an affidavit, it should be taken
in its face value to be conclusive evidence of the alleged fact. The
50
principle which was reiterated by the Court is that, where the contents
of a document are not disputed, the court may act upon those contents
to find that the alleged fact has been proved. In any case, as argued by
the learned Solicitor General, the High Court acted on the document in
contravention of s. 18(1) and (2) of the Electronic Transactions Act,
2015. Sub-section (2) thereof states as follows:-
”18(1) N/A
(2) In determining admissibility and evidential weight of a data message, the following shall be considered-
(a) the reliability of the manner in which the data message was generated, stored or communicated;
(b) the reliability of the manner in which the integrity of the data message was maintained;
(c) the manner in which its originator was identified; and
(d) any other factor that may be relevant in assessing the weight of evidence."
We similarly do not agree with the argument that the appellants
should have sought to call the deponent for cross-examination. Since
the appellants had denied the allegation made by the respondent in his
affidavit, the respondent was duty bound to prove that allegation. That
is in accordance with the elementary principle of he who alleges must51
prove as embodied in the provisions of s. 110(1) of the Evidence Act
[Cap. 6 R.E. 2002] which states:-
"Whoever desires any court to give judgment as to
any iegai right or liability dependent on the existence
of facts which he asserts must prove that those facts
exist"
On the basis of the above stated reasons, we agree with the
appellants that the High Court erred in holding that the Directors who
were Returning Officers for Kinondoni Constituency during the February
2018 bye-elections were active CCM members at the time when they
were exercising those functions.
Similarly, the evidence relied upon by the High Court in its finding
that the 75 Directors who were Returning Officers during the 2015
General Elections were CCM members fell short of reliability as argued
by the learned counsel for the appellants. In its finding, the High Court
relied on mere allegation by the respondent in paragraph 18 of his
affidavit that the President has "appointed members of Chama cha
Mapinduzi as District Executive Directors, hence Officers who are CCM,
party members in place" First, that allegation was not substantiated
and secondly, the respondent could not have a personal knowledge of
52
all the Directors who were Returning Officers for all 75 constituencies
while according to his affidavit, he voted in Kawe constituency during
the 2015 General Elections. He could not therefore be at all those
constituencies at the same time. Since therefore, he did not disclose the
source of information for those facts which could not be from his own
knowledge, the High Court erred in acting on those bare allegations. We
therefore find merit in the 8th ground of appeal and hereby allow it.
We turn next to the 4th and 5th grounds of appeal which challenge
the trial court's interpretation of s. 7(1) and (3) of the NEA on account
that it does not reflect the safeguards set out in article 74(14) of the
Constitution. We agree with the learned Solicitor General's argument
that the impugned provisions should not have been read in isolation of
other provisions of the law intended to ensure compliance with article
74(14) of the Constitution.
As found above, the Directors do not automatically become
Returning Officers upon their appointment. Under s. 7(5) of NEA and
Reg. 16(1) of the Regulations, they are required to take an oath of
secrecy and make declaration that they have not joined a political party
or if they are members of any political party, declare that they have
withdrawn their membership. The argument by the respondent's counsel
53
\
is that the two measures do not amount to sufficient compliance with
article 74(14) of the Constitution. It was argued further that since the
Directors are appointed by the President who is from the ruling party,
they cannot act impartially in the execution of their functions as
Returning Officers.
Moreover, we agree with the appellants that because under s. 57
of the NEA political parties are permitted to appoint polling agents for
purposes of protecting the interests of the respective candidates in the
polling exercise and counting of votes stations, that is another safeguard
in ensuring compliance with article 74(14) of the Constitution. At the
end, each polling agent is availed a copy of results of the particular
polling station. Similarly, in terms of s. 71(2) of the NEA agents of
political parties are allowed to be present during vote addition for the
sake of ensuring involvement of the political parties in that process and
the declaration of final election results.
From the arguments of the learned counsel for the respondent, it
is clear that the crux of the petition is not the absence of the safeguards
in ensuring that the application of s. 7 (1) and (3) of the NEA conforms
to the requirements stipulated under article 74 (14) of the Constitution.
It is that the available safeguards are insufficient and impracticable.
54
On the contention that, since the Directors are appointed by the
President, they cannot abide by the Constitutional requirement of being
impartial, we agree with the counsel for the appellants that such
argument is speculative and based on apprehension. In that regard, we
are guided by the passage in the decision of the Court in the case of
Rev. Mtikila (supra) that:-
"It must be realized that the Constitutionality of a
provision or statute is not found in what could happen
in its operation but in what it actually provides for.
Where a provision is reasonable and valid, the mere
possibility of its being abused in actual operation will
not make it invalid."
We are supported further in that view by the persuasive decision
in the case of Campbell and Fell v. United Kingdom 7 E.H.R.R 165
cited by the High Court in the case of Mabere Nyaucho Marando and
Edwin Mtei v. The Honourable Attorney General, Civil Case No.
168 of 1993 (unreported). In that case, the European Court of Human
Rights considered the issue whether or not a body whose members are
appointed by the Home Secretary can be independent. It held as
follows:
55
"The personal impartiality o f a member of a body
covered by article 6 is to be presumed until there is
proof to the contrary..
In the case at hand, like in Campbell and Fell (supra), the
respondent did not have any evidence to prove the contrary. In the
circumstances, the personal impartiality of the Directors should have
been accordingly presumed unless proved otherwise.
It was argued further that the conditions stipulated under the
above stated provisions and the other laws such as the Public Service
Act, 2002, do not amount to sufficient compliance with the requisite
safeguards stipulated under article 74 (14) of the Constitution. Ms.
Karume argued that the conditions are not stated in the NEA and cannot
therefore be effective in preventing infringement of article 74(14) of the
Constitution. With respect, since the Regulations, particularly reg. 16(1)
of the Regulations which specifically ensures compliance with the
requirements of article 74(14) of the Constitution are made under the
NEA, that is under s. 124, they have the same force of law as the
provisions of that Act. This is clear from the provisions of s.42 of the
Interpretation of Laws Act [Cap. 1 R.E. 2002] which states as follows:-
56
"Any act done under the subsidiary legislation shall be
deemed to have been done under the written law
under which the subsidiary legislation was made."
It means therefore that by acting on the provisions of reg. 16 (1)
(a) and (b) of the Regulations, the Directors are deemed to have done
so under the NEA and therefore the argument that the measures taken
to ensure that there is compliance with article 74 (14) of the
Constitution are insufficient is, with respect, not sound.
On the basis of the findings on the 3rd, 4th, 5th, 6th, and 8th grounds
of appeal, we find merit in the appeal. We accordingly allow it and
consequently, set aside the ruling and drawn order of the High Court.
Since the matter involved a public interest litigation, we make no order
as to costs.
DATED at DAR ES SALAAM this 15th day of October, 2019.
A.G. MWARIJA JUSTICE OF APPEAL
S.E.A. MUGASHA JUSTICE OF APPEAL
R.E.S MZIRAY JUSTICE OF APPEAL
57
R.K. MKUYE JUSTICE OF APPEAL
J.C.M. MWAMBEGELE JUSTICE OF APPEAL
The Judgment delivered on this 16th day of October, 2019 in the
presence of Mr. Vicent Tango, assisted by Ms. Alesia Mbuya, learned
Principal State Attorneys and Mr. Yohana Marco, learned State Attorney
for the Appellant and Mr. Jebra Kambole, learned advocate for the
Respondent; is hereby certified as a true copy of the original.
